TMI Blog2019 (12) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of difference of opinion in the Bench comprising of Hon ble President and Hon ble Member (Technical). HELD THAT:- The relevant dispatch register and speed post register maintained at the Division office have been placed before the Bench earlier and also today for examination. Besides the envelope bearing the speed post no. ER924187517IN issued on 01.9.2017 and the envelope bearing speed post no. ER956130766IN with its contents received by the Appellant on 11.8.2018 are also presented. The size of the former envelope is of 23cm 10cm and is a window envelope, whereas the second one is of 27cm 12cm size. On examination of these envelopes, it has been fairly accepted by all concerned that the first envelope is not fit enough to contain the order dated 29.08.2017, which of eleven pages and legal size paper. Also the postal charges levied for speed post of both letters are different, the second one with higher charge the weight being 90gms, therefore, the order dated 29.08.2017 could not have been dispatched in the envelope containing speed post no. ER9241875719IN, for which minimum speed post charge is levied. The learned Commissioner (Appeals) on the basis of the repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted and whether it is ascertained the order dated 29.8.2017 remained to be dispatched at the Range office or at the Division office itself; the affidavit also does not disclose about the lapse relating to delivery of the Order - it remains with the authority to examine internally about the lapse on the part of the officers. But, as far as the appellant is concerned, they should not made to suffer as the order has been communicated only on 06th August, 2018, hence there is no delay in filing the appeal. The findings and conclusion of the Hon ble President that order dated 29.08.2017 has been communicated to the Appellant only on 06.08.2018, and the Appeal has been filed before Commissioner(Appeals) within the time limit prescribed under Section 35(1) of CEA,1944, is agreed upon - the impugned Order deserves to be set aside and the matter be remanded to the learned Commissioner (Appeal) to decide the issue on merits. - Excise Miscellaneous Application No. 50551 of 2019 In Excise Appeal No. 50574 of 2019 - Miscellaneous Order: 50857/2019 And Final Order: 51577/2019 - Dated:- 2-12-2019 - HON BLE MR.JUSTICE DILIP GUPTA, PRESIDENT AND HON BLE MR. BIJAY KUMAR, MEMBER(TECHNICA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity rejected the said refund claim, but the appeal filed by the Appellant before the Commissioner (Appeals) was allowed by order dated 8 June, 2018 holding that the Appellant had paid excess Oil Cess during the period March 2016 and May 2016 and that the Appellant had not been unjustly enriched. It is further stated that after the Appellant received the said order dated 8 June, 2018, it submitted an application dated 2 August 2018 for payment of the amount under the aforesaid order and also requested that the application filed by the Appellant seeking refund for the subsequent period be also decided. The Appellant claims that as the Assistant Commissioner informed the Appellant that the said refund claim had already been rejected, the Appellant submitted a letter on 3 August 2018 for supply of the order and it is, thereafter, that the Assistant Commissioner supplied the order dated 29 August 2017 to the Appellant by hand on 6 August 2018 and also sent the order by speed post on 6 August 2018, which speed post was received by the Appellant on 11 August 2018. The Appellant filed an appeal before the Commissioner (Appeals) on 4 September, 2018 within a period of sixty days from the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, Jodhpur to intimate the actual date of delivery of the impugned order. The Postal Department, Jodhpur vide their letter F. No. CCC/Jodh HO dated 04.12.2018 has informed that the said speed post No. ER92418751IN dated 01.09.2017 has been distributed to receiver on 12.09.2017 by the Branch Post Office, Bandra (Kawas). 6.2 I find that the Appellant contested that they were informed vide dated 02.08.2018 by the adjudicating authority that the matter has been decided and Order rejecting the refund claim has already been issued. Since, the appellant was not in receipt of the said order, a request was made by the appellant vide letter dated 03.08.2018 seeking attested copy of the said Order, which was supplied vide letter date 06.08.2018. On receipt of the Order-in-Original on 06.08.2018 the appellant being aggrieved filed this subject appeal on 04.09.2018. Hence they have filed appeal within time limit of 60 days from the receipt of the impugned order. 6.3 I find that Order-in-Original No. 28/2017-R dated 29.08.2017 has been sent through speed post No. ER92418751IN dated 01.09.2017 as per procedure prescribed under Section 37C of Central Excise Act, 1944 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so not sent by the Assistant Commissioner, Central Goods and Service Tax, Division-B, Jodhpur in the Division Office who had passed the order dated 29 August, 2017 but was dispatched by the office of the Superintendant in the Range Office and, therefore, proof of delivery of this envelope on the Appellant on 12 September 2017 had nothing to do with the service of the original order upon the Appellant. Grounds D and E that mention the aforesaid facts are reproduced below: D. On checking internally with the Appellant s staff, the Appellant found that it had not received any consignment with Speed Post No. ER924187517IN dated 01.09.2017 (received on 12.09.2017), rather it had received a Departmental communication vide Speed Post No. ER924187517IN which might be the correct tracking number (this number is similar to the number provided in the Impugned Order-in-Appeal). However, the envelope received vide Speed Post No. ER924187517IN contained letter C.No.: CE-5/02/Vedanta/Royalty/17-18/1740 dated 01.09.2017 issued by the Superintendent, Central Goods and Service Tax, Range-II (Balotra), Headquarters 12/3, Civil Lines, Residency Road, Jodhpur. This letter dated 01.09.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar S/o Shri H.C. Nayyar and Shri Shubham Tyagi S/o Shri Parag Sharma both working as Advocates with CTS Law firm having office at A-3/31, Sri Sai Kunj, Sector D-2, Vasant Kunj, New Delhi-110070. Both of us had undertaken inspection of Dispatch Register and Speed post Register before the Assistant Commissioner Central Goods and Service Tax, Division-B, Jodhpur on 20/02/2019. As a result of inspection we solemnly affirm and state as under- With regard to Speed Post Register- 1. That on the relevant page the party name was written in Hindi except Vedanta limited which was written in English and M/s Vedanta Limited was written with a different pen when compared with other entries on the said page. 2. That the Speed Post Register contained the Speed post No. series from 28/08/2017 to 13/09/2017 starting from No. ER90 . except the Speed Post No. mentioned under dated 01/09/2017 for Vedanta Limited which was starting from series ER924 .. It was the sole speed Post No. from the series ER924. 3. That the entry under Dated 01/09/2017 appeared to be inserted since the Speed Post No. of the above letter appears on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not returned back as per their office record. The Commissioner (Appeals) also noted that the Postal Department informed, on a query made by the Commissioner (Appeals) that the aforesaid letter was actually delivered to the Appellant on 12 September 2017 by the Branch Post Office, Bandra (Kawas). 2. Shri Alok Aggarwal, learned Counsel of the Appellant has placed before us the envelope bearing Speed Post No. ER924187517IN and has stated that the envelope in fact contained a letter dated 1 September, 2017 bearing No. 1740 sent by the Office of Superintendent, Central Goods and Service Tax Range. He has also placed copy of the envelope sent by office of the Assistant Commissioner, Central Goods and Service Tax, Range-B bearing Speed Post No. ER956930766IN, containing the Order-in-Original which the Appellant received on 11 August, 2018, though it was earlier received by the Appellant by hand on 6 August, 2018. 3. Learned Counsel for the Appellant has also placed the copy of the despatch register and speed post register which were supplied to him on 5 February 2019 under the Right to Information Act and which are contained at page No. 499 and 500 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs which is at page No. 502 and 503 of this appeal. The respondent shall also place the original despatch register and the speed post register on 10 May, 2019. The registers shall be brought by a responsible officer of the Department in a sealed cover. It is made clear that no tampering of the record shall be undertaken by the respondent in the register. 11. Pursuant to the aforesaid order, the Assistant Commissioner has filed an affidavit, which is reproduced below: Both the register viz. Speed post register and dispatch register are maintained by a dealing assistant namely Mrs. Sunita Java, aged about 52 years, who is an MTS (Multi Tasking Staff) posted in Division office since 2015. To ascertain the facts, a statement of Mrs. Sunita Java was taken by me on 08.05.2019. After examination of the Affidavit submitted by Sh. Shubham Tyagi Sh. D.K. Nayyar, dispatch register, speed post register and the statement made by the dealing assistant, I solemnly affirm and state as under:- With regard to Speed Post Register:- 1. Name of the assessee was written as M/s Vedanta Limited in the Order in Original No. 28/2017-R dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s without lock and key and is unguarded. 3. There is no such practice to further monitor the delivery of post to the receiver. [emphasis supplied] 12. Today, when the matter has been taken up, learned Authorised Representative of the Department has submitted the original dispatch register and the original speed post register. Scanned copies of the relevant page 80 of the Speed Post Register with an earlier page and the subsequent page are as follows: 13. Learned Counsel for the Appellant has made the following submissions: (i) The order dated 29 August 2017 was received by the Appellant by hand only on 6 August 2018 and the Appellant also received a copy of the said order sent on 6 August, 2018 by speed post on 11 August 2018. The Appeal filed by the Appellant on 4 September, 2018 was, therefore, within the time stipulated of 60 days from the service of the order as provided for in Section 35 (1) of the Act; (ii) What document was actually contained in the envelope sent by speed post bearing No. ER924187517IN on 1 September, 2017 was a letter dated 1 September 2017 with No: C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 2017 and the order dated 29 August 2017 were sent to the Appellant by speed post on 6 August 2018 by the Division Office and not the Range Office; (vi) The statement made in the affidavit of the Assistant Commissioner that the order dated 29 August, 2017 was given by hand to a concerned officer of the Range Office at Balotra for service upon the assessee and, thereafter, the said order was sent to the Appellant by the said Range Office by speed post is apparently incorrect for the reason that no supporting documents to substantiate the said statement have been filed; (vii) It is also difficult to comprehend as to how postal expenses could have been minimised in requiring the Balotra Range Office to serve the order upon the Appellant, when both the Division Office and the Balotra Range Office are located in the same city. In fact, a lame excuse has been made by the Assistant Commissioner in the affidavit that it is a common practice to send the post through Range office. The show cause notice and the order sent to the Appellant on 6 August 2018 by speed post were sent from the Division Office and not the Range Office. (viii) The Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that the Appellant had not been unjustly enriched. This order was received by the Appellant on 2 August 2018, on which date the Appellant had also requested that a decision be taken on the refund application subsequently filed by the Appellant on 30 May, 2017. However, the Appellant was informed that the said claim had been rejected. Thereafter, the Appellant made a request on 3 August, 2018 for making available the order. This order dated 29 August, 2018, according to the Appellant, was then made available to the Appellant by hand on 6 August, 2018 and the order was also sent to the Appellant on 6 August, 2018 by speed post bearing no. ER956930766IN from the office of the Assistant Commissioner, Central Goods and Service Tax, Division-B, Jodhpur. It was received by the Appellant on 11 August, 2018. Thus, according to the Appellant, the appeal that was filed before the Commissioner (Appeals) on 4 September, 2018 was within sixty days from the date of communication of the order and could not have been rejected as being barred by time. 18. The Commissioner (Appeals) did not accept the contention of the Appellant that the limitation for filing the appeal would comme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date 1 September, 2017, is that there is no gap of even a single line after the last entry of date 31 August, 2017 and writing of the date 1 September, 2017. In fact 1 September 2017 has been written on the same line in which the last entry relating to the previous date 31 August, 2017 ends. As stated above, there should have been a gap of at least three lines after the last entry of 31 August 2017 ended and the writing of date 1 September 2017. If the entry relating to 1 September, 2017 is ignored, there will be a gap of three lines between the line containing the last entry of date 31 August, 2017 and the line in which date 4 September, 2017 is written in the speed post register. There is also no gap of any line after the date 1 September 2017 is written and the entry of this date. This gap of one line exists in all other entries relating to dates 28 August 2017, 31 August 2017, 4 September 2017, 6 September 2017 and 8 September 2017 contained in the three pages of the speed post registers, scanned copies of which have been reproduced. In fact, a perusal of the speed post register indicates that even for the other dates there is a gap of at least one line after a particular date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conveyed by the Range Office to the Division Office, then again a letter has to be sent with respective entries in the Register/ Peon Book of the Range Office and the Head Office. The affidavit does not mention about such entries in the Registers/Peon Books. The averment is based only on some oral information said to have been provided by the dealing assistant in the Head Office to the Assistant Commissioner after almost one year and eight months. What needs to be noted is that there is only an entry in the speed post register of the Division Office that mentions the envelope bearing No. ER924187517IN was sent by speed post to the Appellant on 1 September 2017. There is no mention in this entry that the entry has been made on the basis of any information supplied by the Range Office. A perusal of the entry clearly indicates that the envelope was dispatched by the Division Office to the Appellant on 1 September 2017 by speed post bearing no. ER924187517IN. 27. The further explanation in the affidavit of the Assistant Commissioner that it is a common practice to send the posts through Range Office to minimise the postal expenses, is also not acceptable. Both the Divis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also been noted by the Commissioner (Appeals) in the impugned order. 31. The matter can be examined from another angle and this will clinch the issue in favour of the Appellant. The Appellant had specifically stated in the memo of appeal that the envelope bearing no. ER924187517IN actually contained a letter dated 1 September, 2017 bearing no. 1740 that was sent by the Superintendant, Central Goods and Service Tax, Range-II (Balotra), Jodhpur in the Range Office to the Appellant in connection with an entirely different matter and that the envelope was not sent by the Assistant Commissioner, Central Goods and Service Tax, Division-B, Jodhpur, in the Range Office who had passed the order. This fact has also been mentioned in the order dated 11 April, 2019 passed by the Tribunal. In fact, in the affidavit filed by the two advocates after inspection of the records, a statement was made that no evidence of service of the order dated 29 August 2017 was produced nor any evidence for service of Speed Post No. ER924187517IN was produced. 32. Learned Authorised Representative of the Department has not controverted this fact nor any register has been placed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... page 80 by inserting the date 1 September 2017 after 31 August 2017, and before 4 September 2017 to make out a case that the order dated 29 August 2017 had been dispatched by speed post to the Appellant on 1 September 2017 whereas it was a letter dated 1 September 2017 that was dispatched to the Appellant by Speed Post from the Range Office. 36. At this stage, it will also be appropriate to refer to the provisions of the Act relating to service of orders. Section 37C (1) of the Act provides that an order shall be served by tendering the order or by sending it by registered post with acknowledgment due or by speed post with proof of delivery or by courier to the person for whom it is intended. Sub-section (2) provides that every order shall be deemed to have been served on the date on which the order is tendered or delivered by post or courier. The Department has not maintained proof of delivery of the orders as all that was stated by the Office to the Commissioner (Appeals) is that the envelope sent by speed post did not return back. It is seen that it is only after the filing of the appeal before the Commissioner (Appeals), that a confirmation was sought from the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal to be made available as and when required. (Dictated and pronounced in the open Court) (JUSTICE DILIP GUPTA) PRESIDENT BIJAY KUMAR: 41. The present appeal is filed against the order dated 01.01.2009 passed by the Commissioner (Appeal). The Commissioner (Appeal) dismissed the appeal filed by the Appellant on the ground of having been filed beyond the period specified in Section 35 F of the Central Excise Act, 1944. It is the contention of the Appellant that the appeal before Commissioner (Appeal) was filed in time as Order-in-Original dated 29.08.2017, which was subject matter of appeal was received by the Appellant on 11 August, 2018 and the appeal, was filed on 04.09.2018 and hence the appeal was filed within the prescribed time as contemplated under Section 35F of the Excise Act. The Commissioner (Appeal), on enquiry, found that the adjudicating authority had forwarded the order to the Appellant by speed post No. ER92418751IN dated 01.09.2017 (should be ER 92418751IN dated 01 September, 2017) as per the procedure prescribed under Section 37C of the Excise Act and same was not returned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has also placed the copy of the despatch register and speed post register which were supplied to him on 5 February 2019 under the Right to Information Act and which are contained at page No. 499 and 500 of the Appeal. 4. A perusal of the speed post register indicates that as against the date 31 August, 2018, there are two entries and the name of the sender is mentioned with Speed Post No. ER902033584IN and No. ER902033598IN. Likewise, the entries of date 4 September 2017 bear Speed Post Nos. ER90206336861IN,ER9033505IN, ER902034718IN and ER 0902034695IN. 5. It is, however, seen that as regard entry of date 1 September, 2017, the name Vedanta Limited in English is written with Speed Post No. ER824187517IN. 6. From the aforesaid, it is contended by the learned Counsel for the appellant that the entry of Vedenta Limited against date 1 September, 2017, has been subsequently inserted. It is suggested that this entry instead of indicating the name of the sender, as in the other entries of 31 August 2017 and 4 September, 2017, mentions the name of the recipient as Vedanta Limited and the Speed Post number begins with ER824, whereas all the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned the same number in the Speed post register of the division office. It is submitted that it is a common practice to send the posts through Range offices to minimise the postal expenses. 3. On examination of the speed post register it can be seen that the number of lines skipped in the Speed post register are not fixed as the same are 2 or 3 or 4 at different pages. It may also be due to the fact that Mrs. Sunita Java is only 10th passed. 4. On examination of the speed post register it can be seen that the numbering of the pages has been corrected by overwriting. The dealing assistant who maintains these registers is not highly educated and therefore overwriting was not intentional. 5. The speed post register is maintained for internal monitoring purpose only. 44. The perusal of the above averments make it clear that the impugned Order-in-Original dated 29 August, 2017 was sent through the Range Officer for dispatch to the appellant by speed post and which was done by the Speed post vide ER No. 9214118757IN, Balotra Range. The submission of the Assistant Commissioner on affidavit that the order dated 29.08.2017 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Date of Hearing: 25.11.2019 Date of Decision: 27.11.2019 Miscellaneous Order No. 50/2019 Per Dr. D M Misra: Heard both sides. 2. The present matter has been referred to third member by Hon ble President on account of difference of opinion in the Bench comprising of Hon ble President and Hon ble Member (Technical) on the issue whether the appeal filed by the Appellant against the Order passed by the Assistant Commissioner dt. 29.08.2017 was within the time limit prescribed under Section 35(1) of Central Excise Act, 1944 and accordingly the Appeal be remanded to the Commissioner(Appeals) for deciding the case on merit or further enquiry is necessary to ascertain the date of communication of the Order. 3. To appreciate the point of difference, it is necessary to narrate the facts in brief even though elaborated in the order of the Hon ble President. 4. The Appellant has filed the refund claim on 30th May, 2017 on account of excess oil cess paid during the period June, 2016 to August, 2016 and January, 2017 to March, 2017 amounting to ₹ 19.43 Crores (approx.). The sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Advocate for the appellant has argued that since the order was communicated to them on 06th August, 2018 for the first time and the appeal was filed on 04th September, 2018, therefore, the rejection of the appeal by the learned Commissioner (Appeals) is bad in law. To ascertain the actual date of communication of the order dated 29.08.2017, an Interim Order was passed by this Tribunal on 11.04.2019 directing the Revenue to file appropriate affidavit to answer the averments made in the affidavit filed by the Lawyers of the Appellants, enclosed with appeal paper book. Consequently, the Assistant Commissioner filed an affidavit on 09th May, 2019 and forwarded speed post register as well as dispatch register maintained during the relevant period at the Division office. 9. The Hon ble President on perusal of the Registers, analysis of the evidences on record and the affidavit filed by the Assistant Commissioner arrived at the conclusion that the order has been communicated to the appellant only on 06th August, 2018 and thus the appeal filed before the learned Commissioner (Appeals) on 04.09.2018 is not beyond the period of limitation prescribed under Section 35(1) of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal is within time. 12. The learned Authorised Representative for the Revenue has submitted that the relevant Speed post, dispatch register and postal envelopes have been examined by the Tribunal. He has contended that there is no dispute of the fact that the speed post bearing no. ER924187517IN dated 01.09.2017 has been dispatched from the Range Office, Balotra but the content of the said envelope is under dispute. He has submitted that in the affidavit of the Assistant Commissioner, it is mentioned that it is a common practice to send the post through Range Office to minimise the postal expenses; which should be understood to mean that it is a common practice to send office dak and some letters by hand delivery to the assessees through the Range Office to minimise the expenses of sending the same by post from the Division office. He has submitted that from the postal charge and size of the envelope with the speed post bearing no. ER924187517IN, it is clear that the adjudication order dated 29.08.2017 could not have been sent in the said envelope as the window envelope cannot contain the Order in legal paper size. It is his contention that, however, there could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d speed post letter no. ER9241875719IN dated 01.09.2017 but contended that it was a letter written by the Range Superintendent to the Appellant in the context of applicability of service tax on the License/royalty fees, and the said envelope did not contain the adjudication order dated 29.08.2017 issued by the Assistant Commissioner. The department could not place any evidence to rebut the said claim of the Appellant. 18. No doubt delivery through speed post in ordinary course be presumed to have been complied with the provisions of Section 37C of CEA, 1944 ,unless the speed post returned back by the postal authorities as undelivered, however, it is a rebuttable presumption and the addressee could rebut through evidences that the speed post has not been delivered to him. This principle has been laid down by the Hon ble Madhya Pradesh High Court in the case of Indore Municipal Corporation vs. Commissioner of Central Excise, [2016 (338) ELT 567 (MP)]. 19. In the present case the appellant could able to demonstrate and rebut the presumption that the order dated 29.08.2017 could not have been delivered to them through the speed post ER9241875719IN dated 01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emains with the authority to examine internally about the lapse on the part of the officers. But, as far as the appellant is concerned, they should not made to suffer as the order has been communicated only on 06th August, 2018, hence there is no delay in filing the appeal. 23. In these circumstances, I agree with the findings and conclusion of the Hon ble President that order dated 29.08.2017 has been communicated to the Appellant only on 06.08.2018, and the Appeal has been filed before Commissioner(Appeals) within the time limit prescribed under Section 35(1) of CEA,1944. Consequently, the impugned Order deserves to be set aside and the matter be remanded to the learned Commissioner (Appeal) to decide the issue on merits. 24. This order may be placed before the Division Bench for passing the Final Order. (Order pronounced in open court on 27.11.2019) (Dr. D M Misra) Member (Judicial) Order In view of the opinion rendered by the Hon ble Third Member we pass the following order. 2. The order dated 1 January 2019 passed by the Commissioner (Appeals) is set ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
